WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
D.D.
Before Justice Michael Perlin
Heard on June 15 and 16, 2026
Reasons for Judgment released on June 24, 2026
Nicole Cadman.................................................................................... counsel for the Crown
William Cavan............................................................................... counsel for the defendant
PERLIN J.:
1The defendant started seeing the complainant, PN, in April 2022 or 2023. A few months later, he moved into her home. Her daughter NW also lived there sometimes. The complainant testified that the relationship ended in July 2025. On Sunday, July 13, at around 4 a.m., they were in bed. He woke up and began touching her breasts and then began trying to touch her vagina. She said no. He persisted while she repeatedly pushed his hands away until he stopped. Later that day, they had an intense argument, during which he made a closed-fisted gesture toward her. She interpreted it as a threat to punch her in the face. NW overheard the argument and, later that afternoon, called police.
2The defendant is charged with sexual assault, assault (by way of a threat to assault the complainant), and failing to comply with a probation order that required him to keep the peace and be of good behaviour. The defendant did not testify at trial. Whether he will be found guilty turns largely on the complainant’s credibility.
I. Overview of the evidence at trial
3The complainant testified that on Saturday, July 12, she planned to go to an anniversary party for her parents with NW, NW’s boyfriend, and the defendant. She testified that the one thing she had asked of everyone was that they be ready to leave on time. However, the defendant delayed their departure and delayed them further while they were en route. He was drinking beer that morning and continued to do so throughout the day. The complainant was not happy.
4That night, after they had returned home, he continued drinking. It was hot. The complainant was very tired and uncomfortable. Her diabetes and high blood sugar contributed to her exhaustion. She went to bed. The defendant followed her to bed later.
5At around 4 a.m.—when the defendant usually woke for work—he woke and tried to engage her in sexual activity. He groped her breasts. She said no and used her hands to try to push him away. He persisted for a few minutes. He then turned his attention and hands to her vaginal area. She continued to resist both verbally and physically, pushing his hands away. He tried to penetrate her digitally but was unsuccessful, as she pushed his hands away forcefully. She was unsure whether he actually touched her vagina. He told her the least she could do was perform oral sex. She refused. He left the bedroom.
6Later in the morning, the complainant left to run some errands. When she left, the defendant was drinking in the garage. He was also there when she got back.
7The complainant and defendant ended up in an argument, in which she became extremely angry. She testified that at one point, they were upstairs standing face to face, arguing. With a closed fist, he gestured toward her. She interpreted this as a threat to punch her in the face, in part because he had coupled a similar gesture a few months earlier with a verbal threat that he would “pop” her. She told him she wanted him to move out. He refused. The argument ended, and he went back to the garage. The complainant spoke about the threat with NW, who encouraged her to call police. She did not do so.
8NW was not present for the alleged sexual assault and was downstairs when the assault allegedly occurred in an upstairs bedroom. She gave evidence generally consistent with her mother’s on the sequence of events. She described her mother as being so upset during the argument that she was worried that her mother might do something that would get her into trouble. During the argument, she overheard her mother accuse the defendant of threatening her, and the defendant deny having done so. Later that afternoon, NW called the police.
9Through counsel, the defendant admitted date, jurisdiction, identity, and that he was on a probation order that required him to keep the peace and be of good behaviour.
10The parties also agreed that police attended the complainant’s home on July 13, 2025, and spoke with the defendant, the complainant, and NW. Officer Nanowski believed the defendant was “very intoxicated”. She noted several indicia of impairment, including the fact that the defendant needed help from police to walk downstairs from the second floor of the house.
11The defence called no evidence.
II. Positions of the parties
12The Crown submits that the complainant was a credible witness whose evidence proves the essential elements of each offence charged.
13The defence submits that the evidence falls short of proving the charges beyond a reasonable doubt. The complainant had a motive to lie: she was angry at the defendant; she wanted him to move out, and he refused. There are other reasons to question her credibility and reliability.
III. Legal principles
14I must find the defendant not guilty of an offence unless the Crown proves each essential element of that offence beyond a reasonable doubt. The burden of proof never shifts to the defendant. Proof beyond a reasonable doubt is not proof to an absolute certainty, or proof beyond any doubt; although it falls much closer to absolute certainty than to proof on a balance of probabilities. A reasonable doubt is not a doubt based on sympathy or prejudice. It is not imaginary or frivolous doubt. It is doubt based on reason and common sense that arises logically from the evidence or absence of evidence. Proof beyond a reasonable doubt is often described as requiring a conclusion that the trier of fact is sure that each element of the offence was committed. See e.g., R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 34, 36; R. v. Starr, 2000 SCC 40, at para. 242.
15Sexual assault can be proven through evidence establishing intentional touching in circumstances of a sexual nature where the complainant does not consent and the accused knows the complainant was not consenting: R. v. Barton, 2019 SCC 33, at para. 87; Criminal Code, R.S.C. 1985, c. C-46, s. 271(b).
16With respect to the separate allegation of assault, this offence often involves a non-consensual application of force. It can also be committed though an attempt or threat, “by an act or a gesture, to apply force to another person” by a person who has “present ability to effect his purpose”: Criminal Code, s. 265(1)(b). The Crown alleges the defendant threatened, by gesture, to apply force to the complainant (by striking her in the face), and, given his proximity to her, had “present ability” to carry out that threat. This offence requires proof that the gesture was intended to threaten. See R. v. Horner, 2018 ONCA 971, at paras. 14-16; R. v. Madsen, 1991 CanLII 7629 (SK QB), at para. 11; R. v. Horncastle (1972), 1972 CanLII 1320 (NB CA), 8 C.C.C. (2d) 253 (N.B.C.A.), at p. 262.
17Failing to comply with probation under s. 733.1 requires proof of a valid, in force probation order and intentional conduct breaching a term of that order. The defendant’s order required him to keep the peace and be of good behaviour. This term would be breached through the commission of a criminal offence: see e.g., R. v. Greco, 2001 CanLII 28397 (ON SC), at paras. 8, 15, aff’d, 2001 CanLII 8608 (ON CA).
18The key issue is credibility. I must carefully consider the totality of the evidence and decide whether the complainant’s evidence is sufficiently credible and reliable to prove any charge beyond a reasonable doubt: R. v. Kruk, 2024 SCC 7, at para. 81.
19The defendant did not testify. However, an exculpatory utterance he made about the alleged assault by threat was introduced through NW’s evidence. During the argument in which the defendant allegedly threatened by gesture to punch the complainant, NW overheard the complainant say, “don’t threaten to hit me”. She heard the defendant respond, “I didn’t” or “that’s not what I did”. I will assess that evidence using the framework from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Accordingly,
(1) If I accept the defendant’s statement that he did not threaten to hit the complainant is true, I must find him not guilty of the assault,
(2) If I do not believe his statement but am left in doubt by it on whether he threatened to hit the complainant, I must find him not guilty of assault. It is also possible that his statement may lead me to question the complainant’s overall credibility, which could raise a reasonable doubt with respect to either the assault allegation, the sexual assault allegation, or both, and
(3) If I do not accept his denial and am not left in doubt by the defendant’s exculpatory statement, I must go on to consider the evidence I do accept to decide whether the Crown has proven the charges beyond a reasonable doubt.
IV. Credibility of the complainant
20After considering the totality of the evidence and the submissions of counsel, I find that the complainant was credible and reliable. She provided an honest and accurate account of what happened.
21Her evidence was logical and plausible.
22She was unshaken in cross-examination. Her evidence was internally consistent and consistent with the other evidence at trial. I reject the argument that there were material inconsistencies in her evidence:
(1) While she testified, but did not tell the police, that the defendant said “come on, come on” while trying to encourage her to consent to sexual touching, the police did not clearly ask her what he had said at that point in the encounter;
(2) Her evidence that, at the beginning of the alleged sexual assault, the defendant had woken her up, is functionally the same as her evidence that, at the time, she had been groggy, or not fully asleep but not yet fully awake;
(3) Her evidence on the duration of the alleged sexual assault—a few minutes of the defendant trying to touch her breasts, and a few minutes of him trying to penetrate her vagina—was consistent with her estimate to police—a few minutes—which referred solely to his effort to touch her breasts.
23Her evidence included a high level of detail; and she explained logically why she was able to remember details. She was candid when she did not remember certain details. Her level of exhaustion at the time of the alleged sexual assault and her use of language like “I think” during her testimony do not suggest that her account is unreliable.
24She was fair. She acknowledged facts that could make her look bad—i.e. her level of anger during the argument. (I do not take anything from the fact that she remembered telling police, “I lost my shit”, but did not remember telling them she had been “foaming at the mouth”.) She also did not appear to exaggerate or embellish in describing the defendant’s conduct.
25The complainant’s and NW’s evidence that the defendant was intoxicated that day was corroborated by a police officer who attended to investigate.
26The complainant explained the timing of her disclosure: she was reluctant to discuss the sexual assault with her daughter or the police. After the argument, she told her daughter about the threat, but not the sexual assault. When police arrived, she initially told them only about the threat. She only told them about the sexual assault a short time later after arguing again with the defendant while the police were present. The timing of the complainant’s disclosure has no impact on my assessment of her credibility. See s. 275; R. v. Garon, 2009 ONCA 4, at para. 72.
27Her credibility is not harmed by NW’s evidence—which I accept—that during the argument the defendant denied threatening to hit her. The complainant testified that she had accused the defendant of threatening to hit her. She did not “think” he had said anything in response. Her evidence fairly allowed for the possibility that she simply did not recall this detail. I would not expect her to recall everything said during an intense argument that occurred nearly a year ago.
28The fact that she testified she perceived his gesture as a threat, while he said he did not threaten her, does not lead me to question whether she was testifying honestly. I accept that, during an intense argument, the participants may disagree on how their own actions, and one another’s actions, should be interpreted. Their disagreement on what happened could be explained by the fact that she genuinely perceived his gesture to be a threat, while he did not intend it to be taken that way. It is also possible that she correctly interpreted his gesture, and he was trying to minimize or downplay his conduct.
29Defence counsel put to NW that she had colluded with her mother to fabricate the allegations. She denied this. In her testimony, NW gave the impression that she disliked the defendant. I also note that both the complainant and NW emphasized the defendant’s drinking in their evidence,1 and that he had been drinking extra-hard lemonade—i.e. with a high concentration of alcohol. NW, during her evidence, volunteered that she had mentioned this in her police statement. It struck me as odd that they would both point this out.
30Despite these facts, I am satisfied that the complainant and NW did not collude to fabricate the allegations. Indeed, NW said little about the allegations. She did not claim to have any first-hand knowledge of the sexual assault or assault. She corroborated the complainant’s evidence in only peripheral ways relating to the basic narrative. She also did not uniformly bolster the complainant’s credibility: she described the complainant’s anger in a way that was not flattering to the complainant; she reported not only the complainant’s exclamation that the defendant should not threaten her, but also his denial of having done so. The extent to which the complainant and NW may have discussed the events at issue was not explored meaningfully at trial. Against this backdrop, I find that the odd similarity between the complainant’s and NW’s evidence on the defendant’s drinking is, at most, evidence of innocent tainting. I accept that NW testified truthfully.
31Finally, the defence alleges the complainant had a motive to fabricate the allegations. If such a motive is shown, it may bear significantly on the complainant’s credibility: an ulterior motive for alleging an offence can provide “a compelling alternative to the truth of the allegations”: see R. v. Batte, 2000 CanLII 5751 (ON CA), at paras. 119-121; R. v. Bartholomew, 2019 ONCA 377, at para. 21. Where a motive to fabricate is alleged, it is for the trier of fact to conclude whether the motive existed and what weight to give it in the credibility assessment: see e.g. R. v. McKenzie, 2020 ONCA 646, at para. 34; R. v. Swain, 2021 BCCA 207, at paras. 27-32; Batte, at para. 121.
32I accept that the complainant had a reason to fabricate allegations against the defendant. She acknowledged that, in her mind, the relationship was over, and she wanted the defendant to move out. She testified she had given him written notice that she wanted him to leave and demanding that he pay back money he owed her. She volunteered that she had grown increasingly angry with him throughout the weekend, culminating during the argument involving the alleged threat. After the alleged threat, she told him she wanted him to leave. He refused to do so. A short time later, NW called the police.
33There is a possible explanation for the allegations that is inconsistent with them being true. But I reject the argument that the possible motive animated her decision to speak with police, largely because I find she was a highly compelling witness. The complainant did not shy away from or try to minimize the fact that she was angry at the defendant and wanted him to leave. She candidly volunteered these facts. I also note that she did not chose to call the police; NW did, after unsuccessfully encouraging her mother to call. The complainant also has not brought any legal proceedings against the defendant, which she may well have done if her motivation in providing a statement had been financial. I believe the complainant was telling the truth.
V. Analysis of the three charges before the court
A. Sexual assault
34I find that the complainant’s description of the alleged sexual assault was a credible and reliable account of what happened. The defendant began touching the complainant’s breasts, first over, and then under, her sleep shirt. The complainant responded by saying “no” and trying to push him away from her. He then reached between her legs and tried to penetrate her vagina with his fingers. I accept that she said “no” and continued to push his hands away, and that he persisted before stopping. These facts prove the essential elements of sexual assault. I am satisfied beyond a reasonable doubt that the defendant touched the complainant in circumstances of a sexual nature; she did not subjectively consent; her actions—expressing her lack of consent verbally and physically—and his responses—changing strategies by moving from her breasts to her vaginal area and his request at the end of the attempted touching that she at least give him oral sex—lead me to conclude that when the defendant persisted in trying to touch her sexually, he knew she was not consenting. His exculpatory utterance regarding the threat does not raise a doubt on this charge.
B. Assault
35With respect to the allegation of assault, I accept the complainant’s evidence that the defendant made a gesture with a closed fist. I accept she believed it was a threat to hit her. To decide whether this gesture amounted to an assault, I must consider NW’s evidence, which I accept, that during the argument she overheard the defendant deny he had threatened to hit the complainant.
36One essential element of assault under s. 265(1)(b) is that the defendant intended his gesture to threaten. I am not satisfied that this element has been proven beyond a reasonable doubt. To my mind, there is a reasonable possibility that the defendant did not to intend his gesture to threaten the complainant: see R. v. Villaroman, 2019 SCC 33, at paras. 30, 36-38, 56. When he made the gesture, they were standing face to face during an intense argument. They were so close that his right hand would necessarily have been in her peripheral vision. She testified that she interpreted the gesture as a threat because a similar gesture on an earlier occasion had been accompanied by a verbal threat to “pop” her. Yet, this time, the gesture was accompanied by a verbal claim that he did not mean to threaten her. It is likely that the complainant interpreted the defendant’s actions correctly. But I cannot exclude the possibility that she was mistaken. This possibility leaves me in reasonable doubt with respect to this offence.
C. Breach of probation
37The defendant was bound by a probation order that required him to keep the peace and be of good behaviour. While bound by this term, he sexually assaulted the complainant. He failed to keep the peace and be of good behaviour and thus violated his probation order.
VI. Disposition
38I find DD not guilty of assault, but guilty of sexual assault and failing to comply with a probation order.
Released: June 24, 2026
Signed: Justice Michael Perlin